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04 Jun ICBC Applies for an Independent Medical Examination of the Plaintiff

In O’Callaghan v. Hengsbach, 2017 BCSC 2182, the Plaintiff alleged she was struck by a vehicle owned and operated by the Defendant while riding her bicycle. Both her Notice of Civil Claim and the Response by the Defendant were filed in 2015.

The trial was set for January, 2018. In November, 2017, the Defendant applied for short leave to bring an application for an order that the Plaintiff attend an independent medical examination (“IME”).

At the time of the application, the 84-day deadline for delivery of expert reports had passed and the date for responsive reports was rapidly approaching. Even so, ICBC decided that it needed psychiatric evidence and hired an Alberta psychiatrist to examine the Plaintiff.

The Defendant’s position was that the extent of the Plaintiff’s problems was not reasonably evident until receipt of two Plaintiff’s reports, both received at or near the 84-day deadline.

The Plaintiff argued that this application did not meet the test for short leave. The Plaintiff’s allegations of psychiatric harm flowing from the accident were set out in the Notice of Civil Claim, the medical records and the Plaintiff’s evidence at her examination for discovery. The Defendant’s own Notice to Admit and an independent medical examination by a Defence neurologist showed they were already alerted to the issue. The Plaintiff’s lawyer also advised that trying to accommodate an application on short notice would detract from her ability to service other clients.

Master Baker noted that there were no authorities to guide the Court in granting or refusing applications for short leave. The Supreme Court Civil Rules offered little guidance, other than an application may be made in circumstances of “urgency”. Master Baker knew such applications should not reward inefficiency, inattention to a particular case or a lack of oversight. He also had to keep in mind that the Plaintiff, who was relying on the timelines imposed by the rules and expecting the Defendant to do likewise, might be prejudiced by the granting of such an application.

This prejudice included the potential disruption of the Plaintiff lawyer’s schedule and service to other clients. The Master noted that more applications for short leave arose in personal injury cases than in any other. And most of those applications for short leave seemed to be on behalf of ICBC, seeking short leave to bring an application for an independent medical examination close to trial.

Master Baker stated that in this particular case, there were multiple indications to the Defence that the Plaintiff was not only making a claim for psychiatric injuries, but that she was firm in her allegation and that in her view the damages were significant and long-lasting. Both the clinical records and her discovery evidence should have reinforced that assertion. Her denial of the facts contained in the Defendant’s Notice to Admit was a further obvious sign. But preceding all of those indicators was the Notice of Civil Claim which was clear in alleging specific psychiatric or psychological injuries and consequences of the accident.

Master Baker concluded that there was nothing in the circumstances of this case to justify any surprise respecting the Plaintiff’s claim of psychiatric injuries, and as a consequence, ICBC’s application for short leave was dismissed.